Can We Stop an International Roe v. Wade?

We must act now to protect unborn children not just at home, but around the world.

By Stefano Gennarini, The Witherspoon Institute, September 13th, 2017

Imagine a day in the not-too-distant future when we finally have the coveted fifth vote necessary to strike down Roe v. Wade. Recall the many years of sweat and tears, ups and downs, wrangling about judicial nominations, and arguing about presidential elections.

Then imagine that fifth vote no longer even matters because abortion has been declared a human right by international law. The issue is not just out of the hands of the Supreme Court—it is out of the hands of the American people.

This nightmare is now unfolding before our very eyes as the UN Human Rights Committee wraps up a draft legal commentary on the right to life that excludes unborn children from membership in the human family and the protections of international treaties.

The Double Standard of the Human Rights Committee

The Human Rights Committee is the oldest and most respected of ten treaty bodies that record the efforts of states to implement UN human rights treaties. It monitors the implementation of the International Covenant on Civil and Political Rights, one of few such treaties ratified by the United States. In July, it published a draft commentary on Article 6 of the treaty on the right to life and invited comments on the draft from civil society and UN member states.

The committee said the right to life “inheres in every human being” and “should not be interpreted narrowly.” It called the right to life the “most precious” right, the “supreme right from which no derogation is permitted.” It even made a highly inclusive list of those protected under Article 6 “without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or any other status, including caste, sexual orientation and gender identity, disability albinism and age.”

The committee then proceeded to exclude unborn children from the protection of Article 6.

States parties must provide safe access to abortion to protect the life and health of pregnant women, and in situations when carrying a pregnancy to term would cause a woman substantial pain or suffering, most notably when the pregnancy is the result of rape or incest, or when the fetus suffers from fatal impairment.

And it excluded also the terminally ill.

States parties [may allow] [should not prevent] medical professionals to provide medical treatment or the medical means in order to facilitate the termination of life of [catastrophically] afflicted adults, such as the mortally wounded or terminally ill, who experience severe physical or mental pain and suffering and wish to die with dignity.

The brackets indicate lack of agreement within the committee on the final formulation.

Leaving aside the entirely laughable attempt to sanction euthanasia on the basis of international law, the mental gymnastics involved here are remarkable. The committee had to ignore the text of Article 6 itself, which prohibits the application of the death penalty to pregnant women. The committee had to also blindfold itself to the Convention on the Rights of the Child; this is the most widely ratified UN human right treaty, cited extensively by the committee in other matters, which expressly states that children are already protected by international law “before birth.”

The committee disingenuously applied a double standard in interpreting the history of the negotiations of the treaty, as Thomas Finegan demonstrates in an important article, “International Human Rights Law and the “Unborn”: Texts and Travaux Préparatories,” in the Winter 2016 issue of the Tulane Journal of International & Comparative Law. It is true that a 1957 draft of the Covenant—the final version of which was ratified in 1966—removed a positive obligation to protect children in the womb from the moment of conception. But Finnegan found no indication in the negotiations that this language was omitted because the right to life was not understood to apply to children in the womb. Rather, it should be viewed as a necessary compromise that allowed countries with permissive abortion regimes to ratify the treaty.

Not only does the final version of Article 6 prohibit the application of the death penalty to pregnant women, throughout the decades-long process of negotiations preceding its ratification, several delegates argued that the right to life applied to children in the womb. Not a single delegate denied that the unborn child has a right to life. In 1947, during the earliest stages of drafting the Covenant, a positive obligation to permit abortion in cases of rape, fetal disability, or for therapeutic reasons was explicitly rejected. Even that rejected proposal did not exclude children in the womb from the protections of the Covenant, but rather carved out a derogation from the right to life in limited circumstances.

Finegan concludes that the omission of the proposal in 1957 should be interpreted not as excluding unborn children from the protections of international law, but as merely leaving a margin of appreciation to domestic legislation on the issue of abortion.

Rights by Stealth

Unfortunately, the Human Rights Committee does not subscribe to textualism or consider original intent in its interpretation of international treaties. Most committee members, and the UN bureaucrats who service the committees, are realists who believe human rights treaties are living instruments. And the committee is not alone.

No UN treaty mentions abortion, and no UN treaty can be fairly interpreted as recognizing a right to abortion. In fact, international law has a presumption in favor of protecting life in the womb, as the San Jose Articles, which were signed by over thirty experts in international law, explain. UN member states continue to say in UN resolutions that abortion is an issue to be dealt with exclusively in national legislation.

Yet nearly all treaty bodies have fallen prey to an elaborate scheme, first documented by my colleague Susan Yoshihara, to establish a defacto international right to abortion by reading abortion into every possible human rights treaty with the help of abortion groups and the UN bureaucracy. Their output on the matter is prodigious, with hundreds of recommendations to countries to liberalize or decriminalize abortion.

To be clear, the interpretations of UN committees are neither binding nor authoritative. UN treaty bodies are not courts, and they cannot usurp the role of sovereign states in the interpretation of treaties. Luckily, the American people are unlikely to relinquish their legislative sovereignty. Even so, the effect of treaty bodies on the international legal environment is highly detrimental. Though it is highly debatable that they can legitimately change the legal obligations of member states under international law, their successes cannot be denied. Slowly but surely, commentaries from the UN human rights system about abortion are reshaping the legal landscape.

In the past, only the most radical groups, most famously the Center for Reproductive Rights, would claimed abortion is an international right, even as they acknowledged behind closed doors that the claim was baseless. Today, you will be hard pressed to find a human rights group that openly affirms that unborn children have a right to life. Even religious groups like Catholic Relief Services, Caritas, and World Vision are timid and defensive when it comes to protecting children in the womb, as if they did not have legal ground to stand on.

The damage is not confined to non-governmental organizations. Some national courts, such as the Constitutional Court of Colombia, have cited UN treaty bodies to strike down laws protecting children in the womb. Opportunistic politicians also routinely cite the treaty bodies as authorities on human rights. And there is hardly a corner of the United Nations system, with its dozens of agencies and programs, its bureaucracy composed of nearly 80,000 people, and its $50 billion budget, where abortion is not seen as a compassionate solution to a crisis pregnancy.

Sadly, sovereign states don’t react enough to the overreach of treaty bodies and other UN entities, especially when it comes to protecting children in the womb. When it comes to keeping up with complex UN processes, there is a significant amount of bureaucratic fatigue. Tragically, it seems that unborn children are not a high priority part of any country’s foreign policy.

A Call to Action

The Human Rights Committee is on the verge of publishing a legal commentary as callous and indifferent to human life as the Roe v. Wade and the DredScottSupreme Court decisions—based upon legal reasoning that is just as tendentious.

Governments should be urged to act by all means possible, whether it is through public statements from politicians, public petitions, or research and publications. No person, institution, or organization that cares about the pro-life cause should sit this one out. Retreat is not an option. The committee must realize that there is real international outrage at what it is doing.

The deadline for governments and civil society to express displeasure with the committee is October 6. Details can be found on the committee’s website. You can also sign this petition and forward it to others. It will be forwarded to the members of the committee by my organization (the Center for Family and Human Rights), Americans United for Life, Concerned Women for America, Family Research Council, Human Life International, the Susan B. Anthony List, United Families International, and other pro-life organizations.

We must act now to protect unborn children not just at home, but around the world.

Stefano Gennarini is the Director of Legal Studies at the Center for Family and Human Rights (C-Fam) in New York. The views expressed in this article are the author’s and are not necessarily the views of C-Fam.

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